Ready-To-Pour, Inc. v. McCoy

511 P.2d 792, 95 Idaho 510, 1973 Ida. LEXIS 303

• Court: Idaho Supreme Court
• Decided: July 3, 1973
• Docket: 10713
• Status: Published

Opinions

SHEPARD, Justice.

This case involves a Ketchum zoning ordinance establishing an industrial district and an attempt to locate a concrete batch plant therein. The City refused to issue a permit for the construction of the plant and thereafter the City eliminated the industrial zone. The trial court found that the City had acted capriciously and arbitrarily in refusing to issue a building permit. The court issued a writ of mandate commanding the issuance of the permit. We affirm.

On July 6, 1965 the City of Ketchum adopted a comprehensive zoning ordinance (Ordinance No. 85), which, among other things, set aside and authorized a six acre parcel for and as an industrial district. A portion thereof provided:

“SECTION X

“I. INDUSTRIAL DISTRICT

“10.1 USES PERMITTED

“(1) Any industrial or manufacturing operation which does not create danger to the safety of employees and residents in surrounding areas and does not cause substantial amounts of offensive noise, vibration, smoke, odors, heat, glare, or other objectionable influences to disseminate beyond the boundaries of the I District;

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“(3) The following uses shall be subject to the provisions of Section XI of this ordinance: automobile wrecking yards; junk yards; dumping or reduction operations; rendering plants; or any other use which might be especially obnoxious, offensive, hazardous or detrimental to the public health and welfare of the residents of the City of Ketchum.”

The next following section of the ordinance enumerated certain uses that would only be permitted within that industrial district after they had been specifically approved by both the city planning and zoning commission and the City Council. The relevant portions of that section provide:

“SECTION XI

“USES PERMITTED BY SPECIAL REVIEW

“11.1 USES PERMITTED

“Due to their particular features, which may be injurious to the health, safety or welfare of inhabitants lcoated nearby, depending on environmental measures taken in each instance, the following uses shall be allowed in the designated zones only upon favorable recommendation of the Planning and Zoning Commission (with additional controls if necessary) and approval by the City Council:

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“(3) Reduction operations, dumping areas and rendering plants in the I District, provided:

“(a) a site plan of the proposed use is furnished; and

“(b) a written statement is provided explaining the methods which will be used to control adverse effects of the operation.

* * * * * * ”

A later portion of the comprehensive ordinance, Section 19.2 as it was in force in 1969 provides:

"No building shall be erected, moved or structurally altered unless a building permit therefore [sic] has been issued by the Building Inspector' or his authorized representative and approved by the City Council or its designated councilman. All permits shall be issued in conformance with the provisions of this ordinance and shall be valid for a period of time not exceeding one year from the date of issue.”

During the summer of 1969 Ready-to-Pour, Inc. purchased three lots in the industrial district for its concrete batch plant. The plant was then temporarily located in Sun Valley, approximately one mile distant. On July 5, 1969, Ready-to-Pour applied for a building permit pursuant to Section 19.2 supra. On July 9, 1969 the City Council denied that application. On July 16, 1969, Ready-to-Pour obtained an alternative writ of mandate directing Leonard B. McCoy, et al. (hereinafter the City) to show cause why they should not be ordered to issue a building permit for construction of the concrete batch plant. The City filed an answer to said alternative writ and certain citizens of Ketchum were granted leave to intervene as third party petitioners.

The parties then agreed to resubmit Ready-to-Pour’s application to the City Council. The City Council heard testimony from many witnesses and viewed Ready-to-Pour’s batch plant operation in Sun Valley. The City Council denied the application on the following grounds:

“1. That the proposed operation will cause substantial amounts of offensive noise, dust, increased traffic and other objectionable influences beyond the boundaries of the Industrial District.

“2. That the proposed operation would be especially obnoxious, offensive and detrimental to the public health and welfare of the residents of the City of Ketchum.

"3. That the City of Ketchum is essentially a resort and tourist service area as well as a primary residential area, because of which the proposed operation of Ready-to-Pour Concrete Co., Inc. would not be in harmony with the essential functions of the City, nor in keeping with the spirit, purpose and intent of Ordinance 85 of the City of Ketchum.” Minutes, Special Meeting, Ketchum City Council July 24, 1969.

On September 30, 1969, following notice and two public hearings the City Council adopted Ordinance 133 eliminating the industrial zone.

A trial was had in the district court on the issues thus joined. The trial court found and concluded that the City Council acted arbitrarily and capriciously and had abused its discretion in refusing to issue the building permit to Ready-to-Pour. The court issued a writ of mandate directing the City to grant the building permit. The City did not grant the permit as directed and thereafter, on May 18, 1970, the district court issued an order enjoining the City from taking any action against Ready-to-Pour in the event Ready-to-Pour should proceed with construction of its concrete batch plant.

The district court found that the proposed batch plant was a manufacturing operation as defined by Section 10.1(1) and was not a dumping, reduction or rendering operation within the meaning of Section 10.1(3).

The trial court reasoned that the proposed plant was not a nuisance per se but that the plant might constitute a nuisance per accidens. The court stated that, even if the plant were found to be a nuisance per accidens, the City could not refuse to issue the permit on that ground because the elements of the prospective nuisance could not be factually determined at the time of the permit application.

In its memorandum opinion the trial court stated that Ordinance 133, eliminating Ketchum’s industrial district, had no bearing on Ready-to-Pour’s application because Ready-to-Pour’s rights should be determined under the law in effect at the time the application was made.

We consider first the threshold question as to whether the applicant’s rights are to be measured under Ordinance 85 in effect at the time of the application, or under Ordinance 133 in effect at the time this case went to trial. Idaho has adopted the minority view that the applicant’s rights are measured under the law in effect at the time of the application. See: McQuillin, The Law of Municipal Corporations, § 25.155 (3d ed.1965). In Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 601, 448 P.2d 209, 215 (1968), we stated:

“At least in those cases like the present one, in which no zoning ordinance was pending at the time an application for a building permit is filed, it is our opinion that an applicant is entitled to a building permit upon compliance with the then existing ordinance.”

The elimination of the industrial zone in Ketchum by Ordinance 133 did not alter the applicant’s rights to a building permit.

We turn now to the trial court’s finding that the City abused its discretion in denying the building permit sought by Ready-to-Pour. The minutes of the City Council’s special meeting on July 24, 1969, supra, set forth the three reasons for denial of the permit. We deem it necessary to review the evidence before the trial court. Two members of the City Council testified on behalf of the City. Their testimony demonstrates that they denied Ready-to Pour’s application because they felt the initial creation of the industrial zone was a mistake and because the applicant’s batch plant should be banned from the City regardless of whether or not it conformed to the zoning ordinance. As an example, Witness Glenn, a City Councilman, testified as follows:

“Q. Am I correct in coming to the conclusion from what you are saying that, in fact, your objection to granting the permit is based upon an objection to having this plant in Ketchum, period, regardless of what the zoning ordinance might say about it ?

“A. Well, that’s about right.”

Similarly, Witness Jewell, also a City Councilman, was questioned and answered as follows:

“Q. Ben, is it — was it your opinion on July 24th when you voted against the issuance of this permit that, in fact, the industrial area was a bad deal — a bad idea in Ketchum ?

“A. Well, I don’t think it’s been my opinion and — that the area never was big enough and probably never, even in the beginning, should ever been designated an industrial area, * * * is certainly not an industrial site.

“Q. So, in fact — I think I am repeating myself — but, in fact, then, it was the size of this area and the fact that you didn’t think it was suitable for industrial that gave rise to your voting against it ?

“A. Right. I never did think it was a logical industrial area in the beginning particularly.”

Uncontroverted testimony indicated that there were other batch plants located in the area; that the applicant’s property was located almost immediately adjacent to the railroad right-of-way; that the City itself maintained a heavy equipment storage yard near applicant’s property; that located immediately adjacent to applicant’s property is a business facility upon which is unloaded, stored and re-loaded piles of sand, gravel and shale in approximately the same amounts contemplated by the applicant. The numbers and types of vehicles used in connection with said operation-are not dissimilar to those of applicant.

Appellants City and intervenors contend on appeal that applicant’s use violates Section 10.1 of the zoning ordinance. We note that the evidence is uncontroverted, that no untoward danger to the safety of the employees will be created. The only purported danger to the residents in the surrounding areas is from the generation of increased traffic. One of the City’s witnesses estimated that considering the estimated thousand vehicles per day utilizing the road serving the area, applicant’s trucks would not create any substantial increased traffic count. That same witness testified that he did not feel the proposed plant would create objectionable vibration, smoke, odors, heat or glare.

The evidence was hotly contested concerning the relative amount of noise which would be produced by applicant’s proposed plant and at what distance such noise would be offensive, if at all, beyond the limits of the industrial zone.

The trial court found that the operation of the plant would not violate any of the provisions of the zoning ordinance. Implicit in the trial court’s decision are the determinations that any noise from the plant would be minimal and would not spread beyond the boundaries of the industrial district. As this Court has held innumerable times, since such determination was made on substantial although conflicting evidence, it will not be disturbed upon appeal. Schoenick v. Smalley, 93 Idaho 786, 473 P.2d 928 (1970); Hisaw v. Bishop, 95 Idaho 145, 504 P.2d 818 (1972); Ivie v. Peck, 94 Idaho 625, 495 P.2d 1110 (1972).

Appellants next suggest that Section 10.-1(3) and Section 11.1 of the ordinance require the applicant to secure favorable recommendation of the Planning and Zoning Commission and the City Council because applicant’s operation is either a “dumping operation” or “dumping area.” It is to be noted that the ordinance speaks in terms of operations which are “especially obnoxious, offensive, hazardous or detrimental to the public health and welfare * * Those are enumerated as “automobile wrecking • yards; junk yards, dumping or reduction operations, rendering plants.”

The district court ruled as a matter of law that the City Council’s consideration of the permit application could not have been a special review under Section XI because the proposed batch plant was not a dumping or reduction operation. The court found that any dumping done in connection with the plant would only be incidental to the plant’s operation. We might at this point engage in a semantic discussion as to the meaning of the term “dump,” or “dumping operation.” As set forth in Black’s Law Dictionary, 4th edition, 1968, the term could be considered as an operation “unloading or dropping down or depositing something in an unshaped heap or mass,” or as set forth in Webster’s Third New International Dictionary: “to unceremoniously and irresponsibly dispose or discard.” Such a discussion is not necessary, however, because the evidence relating to the surrounding area and its usages, and the context within which the phrase was used in the ordinance makes it clear that it intended a special prohibition against a refuse pile or what might be commonly called a city dump. The record substantiates the findings and conclusion of the district court in this regard.

This Court has continually upheld the validity of actions of zoning boards whenever they are free from capriciousness, arbitrariness or discrimination. There is a strong presumption in favor of the validity of actions of zoning boards and such presumption can only be overcome by a showing that the ordinance as applied is confiscatory, arbitrary, unreasonable and capricious. See: Idaho Falls v. Grimmett, 63 Idaho 90, 117 P.2d 461 (1941); Rowe v. Pocatello, 70 Idaho 343, 218 P.2d 695 (1950); State v. Clark, 88 Idaho 365, 399 P.2d 955 (1965); Cole-Collister Fire Protection District v. Boise, 93 Idaho 558, 468 P.2d 290 (1970).

We hold that Ready-to-Pour has sustained its burden of proving that the City Council’s action herein was confiscatory, arbitrary and capricious. We are not unmindful of the contentions of the City and intervenor that Ketchum is essentially a resort and a place of beauty. We agree. It may be that applicant’s proposed operation will deter from the aesthetic values of the area. That, however, is a policy decision which was made by the City Council in 1965 when it enacted the ordinance authorizing the creation of an industrial district within the City of Ketchum. People are entitled to rely upon the law. The applicant purchased its property for the erection of its batch plant relying on the City Council’s action creating an industrial district. The trial court heard the witnesses and viewed the operation of applicant’s plant at Sun Valley. We therefore uphold the trial court’s findings because they are based on substantial though conflicting evidence.

We return to appellants’ contention that the trial court erred in concluding that the proposed plant did not constitute a nuisance per se, and on the record it could not be determined to be a nuisance per accidens. The trial court ruled that the plant’s future effects on the community were not matters which could be determined at that time.

We agree that the State of Idaho has by statute and by common law granted cities broad powers to regulate nuisances of all varieties:

“The power of a city to declare a nuisance is not limited to that which is a nuisance per se. It may also declare that a nuisance which is such in fact or per accidens.” Rowe v. Pocatello, 70 Idaho 343, 348, 218 P.2d 695, 698 (1950). See also McQuillin, The Law of Municipal Corporations, § 24.325. (3d ed. 1965).

This argument is of no avail to appellants. The concise response is that the City has not so declared a concrete batch plant to be a nuisance, either per se, or per accidens. In the event the City does so declare such plants to be a nuisance, another law suit may erupt. The action of the trial court at that particular juncture was obviously correct.

The judgment of the trial court is affirmed. Costs to the respondent.

McFADDEN, and BAKES, JJ., concur.